Bombay High Court
Mituram S/O Udayram Dhurve vs The State Of Mha. Thr. Pso Ps Warud ... on 8 August, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:9177
208 apeal no.201.2021jud..odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 201 OF 2021
Mituram s/o Udayram Dhurve
Age: 28 yrs. Occ. Labour,
R/o Hanuman Nagar,
Near Shikshak Colony, Warud, .... APPELLANT
Tq. Warud and Dist. Amravati (In jail)
// V E R S U S //
1. The State of Maharashtra,
Through Police Station Officer,
Police Station Warud,
District Amravati
... RESPONDENTS
2. XYZ /(Victim) (In FIR/Crime
No.627/2017),
Through Complainant,
Police Station Officer,
Police Station : Warud
District: Amravati
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Mr R.D. Hajare, Advocate (Appointed) for the appellant.
Ms Mukta Kavimandan, APP for respondent No.1/State.
Mr. Aniket Rangari, Adv. h/f Ms Mohini Sharma, Adv.
(Appointed) for respondent No.2.
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CORAM : G. A. SANAP, J.
DATE : 08.08.2024
208 apeal no.201.2021jud..odt
2
ORAL JUDGMENT :
1. In this appeal, the challenge is to the judgment and
order dated 04.02.2021 passed by the learned Sessions Judge,
Amravati, whereby the learned Sessions Judge held the
appellant guilty of the offence punishable under Section
354-D (1) (i) of the Indian Penal Code (for short, "the I.P.C.")
and under Section 12 of the Protection of Children from Sexual
Offences Act, 2012 (for short, "the POCSO Act") and
sentenced him to suffer rigorous imprisonment for one year
and to pay a fine of Rs.5,000/-, in default of payment of fine to
further suffer simple imprisonment for one month.
2. Background facts:-
The report in this case was lodged by the victim girl
on 19.08.2017. It is stated that on the date of the incident, the
victim was 13 years of age and studying in 9 th standard. At the
relevant time, she was also attending the tuition classes at
208 apeal no.201.2021jud..odt
Warud. The timing of her tuition classes was 8.00 a.m. to
11.00 a.m and her school timing was 12.00 p.m. to 5.15 p.m.
The victim has stated in her report that since prior to one
month of the report dated 19.08.2017, one boy would stand in
front of school and would stare at her. The said boy would take
his motor cycle near to the victim. It is stated that one day
when she was proceeding from school to her house by ring
road, the said boy suddenly came in front of her and expressed
his desire to talk to her. The victim told him that she was not
acquainted with him. At that time the said boy disclosed his
name as Mituram Dhurve. The victim flatly refused to
communicate with the said accused in any manner. It is stated
that the accused thereafter was repeatedly following her. The
victim told him not to follow her; otherwise she would disclose
the incident to her parents. There was no change in the
behavior of the accused. He would constantly follow the victim.
3. It is stated that on 19.08.2017 she finished her
208 apeal no.201.2021jud..odt
tuition class at Malpe Sir and was proceeding to attend the
tuition class of English subject. She was proceeding via post
office Hanuman Temple towards Jagruti School. When she
went near the post office , one person came from behind and
caught held her hand. She turned around and saw that he was
the accused, who had caught held her hand. She pleaded with
the accused to release her hand, but at that time the accused
told her that he loves her and one day she would accept his
love. The victim resisted and some how rescued herself from
the accused. She gave him a slap on the face. At the relevant
time, one unknown person came there and made an inquiry
whether the accused was harassing her. She informed the said
person that the accused was harassing her. The said unknown
person told her that he would take care of said boy. She should
attend her tuition class. The victim went to attend the tuition.
After attending the tuition, she went to the school. Her
mother came to the school to take her to the doctor. She
208 apeal no.201.2021jud..odt
disclosed the incident to her mother. The mother informed her
father about the incident. Her father came there. They together
went to the police station. The victim lodged the report at
Warud Police Station. Police registered First Information
Report No.0627/2017 against the accused.
4. Priya Umale, PSI (PW-3) conducted the
investigation. She drew the spot Panchanama. She collected the
documents of the age of the victim. She recorded the
statements of the witnesses. After completion of the
investigation, she filed the charge-sheet against the accused.
Learned Sessions Judge framed the charge against the accused.
The accused pleaded not guilty. His defence is of false
implication. Prosecution examined four witnesses to prove the
charge against the accused. Learned Sessions Judge, on
consideration of the evidence, held the accused guilty of the
offence punishable under Section 354-D (1), sub-clause (i) of
the I.P.C. and under Section 12 of the POCSO Act and
208 apeal no.201.2021jud..odt
sentenced him as above. Being aggrieved by the judgment and
order, the appellant has come before this Court in appeal.
5. I have heard Mr. R.D. Hajare, learned Appointed
Advocate for the appellant, Mrs. Mukta Kavimandan, learned
APP for the State and Mr. Aniket Rangari, learned Advocate
h/f Ms. Mohini Sharma, learned Appointed Advocate for the
respondent No.2. Perused the record and proceedings.
6. Learned Advocate for the appellant submitted that
in this case, the offence of stalking under Section 354-D (1),
sub-clause (i) of the I.P.C. has not been proved. Learned
Advocate submitted that the act alleged to have been
committed by the accused was not committed repeatedly.
Learned Advocate further submitted that evidence on record is
not sufficient to prove either the offence of stalking or the
offence of sexual harassment. Learned Advocate would submit
that evidence of the victim PW-1 does not inspire confidence.
208 apeal no.201.2021jud..odt
Learned Advocate took me through the evidence of the victim
and pointed out that the victim has admitted that 3 to 4 more
girls used to attend the school with her. Learned Advocate
submitted that the prosecution has not examined a single girl to
seek independent corroboration to the evidence of the victim.
Learned Advocate took me through the evidence of the mother
of the victim (PW-2) and submitted that she was not witness to
any incident occurred with the victim. Learned Advocate would
submit that for nearly one month, the accused was allegedly
stalking the victim, but the victim did not disclose the same to
her parents. Learned Advocate submitted that this is the most
unnatural conduct of the victim. Learned Advocate submitted
that except for the interested evidence of the victim and her
mother, there is no other independent evidence to corroborate
the case of the prosecution. Learned Advocate would submit
that learned Sessions Judge has placed implicit reliance on
their evidence and handed down the conviction and
208 apeal no.201.2021jud..odt
sentence to the accused. Learned Advocate further submitted
that there is no cogent and concrete documentary evidence to
prove the date of birth of the victim. Learned Advocate would
submit that the available evidence produced by the prosecution
is not legally admissible.
7. Learned APP submitted that learned Sessions Judge
has thoroughly marshaled and appreciated the evidence of the
prosecution witnesses and on scrutinizing the evidence carefully
has held the accused guilty of the above offences. Learned APP
submitted that the victim and her mother had no relations or
enmity with the accused. Learned APP submitted that the
victim had no reason to falsely implicate the accused in such a
serious crime, which would obviously have stigmatized her and
her family. Learned APP submitted that the first hand account
of the incident narrated by the victim is credible and therefore,
cannot be disbelieved. Learned APP submitted that there was
no delay in lodging the report. It is pointed out that the accused
208 apeal no.201.2021jud..odt
has not pleaded any defence for his false implication. Learned
APP submitted that the offence of stalking has been proved on
the basis of the evidence of the victim girl. Learned APP further
submitted that the offence of sexual harassment as defined
under Section 11 of the POCSO Act has also been established.
As far as the date of birth of the victim is concerned, learned
APP submitted that prosecution has examined Lalita Dhoke-
Head Mistress (PW-4) of the school, where the victim was
admitted in the 1st standard. Learned APP submitted that
during the course of investigation investigating officer had
collected the certified extract of the admission register from the
school as well as the affidavit of the father of the victim
submitted in the school. Learned APP submitted that in these
two documents the date of the birth of the victim has been
recorded as 19.09.2003. Learned APP, in short, submitted that
there is no substance in the appeal.
208 apeal no.201.2021jud..odt
8. The victim on the date of the incident was studying
in the 9th standard. The victim has stated the birth dates of her
elder and younger sisters. She has stated that she was admitted
in 1st standard in Zilla Parishad Primary School at Rajura Bazar
and studied there up to 4th standard. In her evidence, she has
stated that she is 17 years old. It is true that she has not
specifically stated her birth date. Her mother PW-2, has stated
her birth date. She has stated that her birth date is 19.09.2003.
She was born at Ahmadabad. The mother has also stated the
birth dates of her elder and younger daughters. The birth date
of the elder daughter is 10.04.2000 and the birth date of the
younger daughter is 02.05.2007. She has also stated that the
victim was admitted to Zilla Parishad School at Rajura Bazar in
the first standard.
9. PW-4 is Head Mistress of Zilla Parishad Primary
School, Rajura Bazar. She was summoned to produce the
admission register to prove the certified extract of birth
208 apeal no.201.2021jud..odt
certificate issued from the school. She has deposed that the
victim girl was admitted to the school on 25.06.2009 in the 1 st
standard. The relevant entry from the admission register is at
serial No.7303. She has stated that, as per the school admission
record, the birth date of the victim is 19.09.2003. The original
admission register produced by her was duly verified by the
learned Sessions Judge. The extract is at Exh.32. PW-4 has also
produced the affidavit register. As far as the affidavit of the
parents of the victim is concerned, it is at serial No.7306. The
extract of the said affidavit is at Exh.33. The extract was
verified and compared with the original record. She has stated
that the birth date was provided by the parents of the victim.
This witness was cross-examined. Perusal of the cross-
examination of this witness would show that there is no
admission of any significance on record to rebut the evidence of
PW-4.
208 apeal no.201.2021jud..odt
10. It is true that there is no birth certificate. The only
document relied upon is the school admission register, where
the birth date of the victim was recorded. It needs to be stated
that it is not the case of the accused that this documentary
evidence was prepared to support the case of the prosecution.
The offence is dated 19.08.2017. The victim was admitted in
the school on 25.06.2009. Learned Sessions Judge has
appreciated this evidence and has recorded the finding that the
school admission register is cogent and concrete to prove the
birth date of the victim. Learned Sessions Judge has found that
this evidence is sufficient to prove the age of the victim. On
re-appreciation of the evidence, I am satisfied that this record
was not created just to support the case of the prosecution. The
birth date recorded in the school register is proof of her birth
date through out her life for all purposes. The mother, apart
from stating birth date of the victim has stated the birth dates of
her elder and younger daughters. The evidence of PW-1 and
208 apeal no.201.2021jud..odt
PW-2, as to the age of the victim has not at all been challenged.
On the basis of this evidence I am satisfied that the prosecution
has proved beyond doubt the birth date of the victim and as
such, the fact that the victim on the date of the incident was
below 18 years of age. In view of this, I do not see any
substance in the submissions advanced by learned Advocate for
the appellant.
11. The next important issue as to whether the
evidence of the victim and her mother inspires confidence or
not and the offence proved against the accused on the basis of
the said evidence?
12. PW-1 is the victim girl. She has deposed that the
incident occurred on 19.08.2017. It has come in her evidence
that at that time she was studying in 9 th standard and apart from
the school, she used to attend tuition classes of Math, Science
and English at Warud. She has stated that timings of classe was
between 8.00 a.m. and 11.00 a.m. and the timings of the
208 apeal no.201.2021jud..odt
school was 12.00 p.m to 15.15 p.m. She has testified that she
would travel to the school by bus. As far as the accused is
concerned, she has stated that the accused would stand in front
of her school and would stare at her. He was harassing her. He
was riding the bike intentionally in front of her. She has
categorically stated that one day when she was proceeding
towards bus stand by ring road the accused came in front of her
and restrained her. The accused told her that he would like to
communicate with her. He disclosed his name as Mituram
Dhurve. The victim has categorically told the accused that she
is not acquainted with him and therefore, she would not
communicate with him. She has stated that after this incident,
after a few days, the accused again started following her and
harassing her, despite her clear indication of disinterest in the
accused. She has further stated that the accused continued to
follow and harass her. As far as the incident dated 19.08.2017
is concerned, she has stated that while she was proceeding for
208 apeal no.201.2021jud..odt
tuition class and in front of post office near Hanuman Temple,
some one came from behind and caught hold her hand. She
turned around and saw that he was the accused. She has stated
that the accused told her that he is having love for her and he is
confident that one day she would accept his love. The victim
slapped the accused on face and rescued herself. She has stated
that at that time one unknown person came there and told her
to leave, with an assurance that he would take care of the
accused. She therefore, attended the tuition class. After tuition,
she went to the school. Her mother came to the school to take
her to the hospital. She narrated the incident to her mother and
thereafter the report was lodged. The oral report is at Exh.9.
The First Information Report is at Exh.10.
13. This witness has been cross-examined. The only
admission that may provide some temporary soothing relief to
the accused is that she has admitted that other girls from her
village would also travel with her in the bus. She has also
208 apeal no.201.2021jud..odt
admitted that other girls would also attend tuition class with
her. Prosecution has not examined any of her friends. It needs
to be stated that only because of this, the evidence of the victim
would not get dented. One suggestion was put to her that she
was communicating with one boy and on the suggestion of the
said boy the report was lodged against the accused. The victim
has denied this suggestion. Perusal of her cross-examination
would show that she has consistently reiterated the basic
incident. Despite searching cross-examination the core of her
evidence has not been shaken. It needs to be stated that the
victim girl had no reason to falsely implicate the accused. The
reason put forth in the cross-examination cannot be believed.
The accused was not studying with the victim girl. The victim,
in her evidence, has narrated the first hand account of
behaviour and conduct of the accused. The evidence of the
victim is sufficient to prove that the accused repeatedly
followed her with an intention to foster personal interaction,
208 apeal no.201.2021jud..odt
despite a clear indication of disinterest by her. The evidence of
the victim would further be sufficient to prove that she was
subjected to sexual harassment by the accused. The offence of
sexual harassment as provided under Section 11 sub-clause (vi)
of the POCSO Act would squarely apply in this case. It needs
to be stated that the behaviour and conduct of the accused is
sufficient to reflect on his intention. The accused was
repeatedly following the victim girl. He wanted to talk with her.
He wanted to have love relations with her. He expressed his
love for the victim and boasted that one day the victim would
accept his love and say yes to him. In my view, the intention of
the accused is explicit from his conduct. His intention was not
good.
14. The mother of the victim is not an eye witness to
the incident. She has narrated the account of the incident told
to her by the victim girl. She has stated that on 19.08.2017 the
victim was not well and therefore, she had to be taken to the
208 apeal no.201.2021jud..odt
hospital. She went to Warud and was waiting for her in front of
her school. She has stated that she met the victim at about
11.00 a.m. in front of the Jagruti School. She has stated that at
that time the victim disclosed the incident occurred with her.
She has disclosed the name of the accused as Mituram Dhurve.
She has stated that the victim narrated the incident of
19.08.2017 as well as the constant harassment and stalking by
the accused. She has stated that she immediately informed her
husband about the incident. Thereafter she took her daughter
to the hospital and after arrival of her husband, they went to the
Police Station and lodged report at about 3.00 to 3.30 p.m. It
is to be noted that the evidence of PW-2 is consistent with the
evidence of the victim. PW-2 did not try to exaggerate
anything. She has confined herself to the incident narrated to
her by the victim. It is true that the victim prior to this date had
not disclosed anything about the harassment as well as stalking
to her by the accused. In my view, that by itself would not be
208 apeal no.201.2021jud..odt
sufficient to discard and disbelieve the evidence of the victim
and evidence of her mother.
15. Perusal of the evidence of the victim would show
that at her level, she initially tried to resist the accused. She gave
an understanding to the accused that she was not interested in
him in any manner. However, the accused did not listen to her,
which ultimately resulted in the occurrence of the incident
dated 19.08.2017. Perusal of her cross-examination would
show that there are no major omissions and inconsistencies.
Similarly, there are no major omissions or inconsistencies in the
evidence of the victim. There are no interse inconsistencies in
the evidence of PW-1 and PW-2. The prompt lodging of the
report is another important circumstance in favour of the
prosecution. The circumstances would substantiate the
credibility and trustworthiness of the victim. On minute
scrutiny and perusal of the evidence of the PW-2, I do not see
any reason to discard and disbelieve the same.
208 apeal no.201.2021jud..odt
16. It needs to be stated that when the girl is involved
in such an incident, there is reluctance on the part of the
parents to report such a matter to the police. Reporting of
such a matter to the police and bringing such a matter in
public domain, with certainty, can spoil the future of the girl.
Such an offence produces stigmatic consequences, not only for
the girl but, also for the family. The reporting of such crimes
always puts the prestige and reputation of the family at stake. In
the ordinary circumstances the parents even cannot think of
involving their daughter in such an incident. In this case, there
is no evidence even to suggest that they have any motive to
falsely implicate the accused. There was no suggestion of any
enmity on any account between the parents of the victim and
the accused. In my view, this is the most vital circumstance to
reject the submissions made on behalf of the accused. The
evidence is credible and trustworthy. Such credible and
trustworthy evidence cannot be discarded. In the facts and
208 apeal no.201.2021jud..odt
circumstances, I conclude that there is no substance in the
appeal. The offence of stalking and sexual harassment has been
proved against the accused. The evidence is sufficient to
establish the basic ingredient of the offence under Section 354-
D (1) sub-clause (i) and Section 11 (iv) of the POCSO Act.
Learned Judge has awarded a substantive sentence of one year.
Learned Judge has taken lenient view on this count. I do not
see any reason to modify the substantive sentence. As such, the
appeal deserves to be dismissed.
17. Accordingly, the Criminal Appeal is dismissed.
Pending application, if any, stands disposed of.
18. Learned appointed Advocate for the appellant and
learned appointed Advocate for respondent No.2 be paid
professional fees, as per the rules.
(G. A. SANAP, J.)
manisha
Signed by: Mrs. Manisha Shewale
Designation: PA To Honourable Judge
Date: 20/08/2024 11:13:43
